Opinion
NO. 09-11-00559-CV
09-06-2012
IN RE COMMITMENT OF DAVID BATH
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 11-01-00158 CV
MEMORANDUM OPINION
David Bath appeals, challenging an order following a jury trial in which the jury found that he is a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151 (West 2010 & Supp. 2012) (SVP statute). We affirm the trial court's judgment.
Legal Sufficiency
Bath's first issue, which challenges the legal sufficiency of the evidence supporting the jury's verdict, requires that we assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find, beyond a reasonable doubt, the elements required for commitment under the SVP statute. See Inre Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—Beaumont 2002, pet. denied). In jury trials, the jury determines the credibility of the witnesses, weighs the testimony and the other evidence, resolves any conflicts in the evidence, and from the evidence admitted at trial, draws reasonable inferences from basic facts to ultimate facts. Id. at 887. When we review the evidence supporting the jury's verdict on appeal, we "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Bath argues that the jury's verdict cannot be supported by what Bath claims is the flawed and conclusory opinion testimony of the State's experts, Dr. Stephen Thorne, a psychologist, and Dr. Lisa Clayton, a psychiatrist. An expert's opinion is incompetent and will not support a verdict when contrary evidence shows the opinion is based upon unfounded assumptions. Id. at 812-13.
Bath contends that Dr. Thorne's opinion is incompetent because Dr. Thorne manipulated the data to fit a predetermined conclusion under the guise of clinical judgment. However, the record reflects that Dr. Thorne explained why he did not consider two actuarial tests that Bath took as outcome determinative on the question of the risk that Bath would reoffend. According to Dr. Throne, the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) places Bath at a low risk to reoffend, while the Static-99R places Bath at a moderate to high risk to reoffend. According to Dr. Thorne, these tests fail to account for two sexual offenses for which Bath was never arrested or convicted, but Bath admitted the offenses had occurred. As a result, Dr. Thorne stated that these tests underestimate Bath's real risk. Dr. Thorne also explained that he considered Bath's non-sexual criminal history relevant because "it still gives us information about an individual's willingness to break the rules, break the law, violate the norms that society and the legal system [have] placed upon us."
Thus, the record reflects that Dr. Thorne explained to the jury how Bath's entire history was relevant to his assessment of whether Bath would commit a future act of sexual violence, and his explanation reflects that he weighed and considered Bath's criminal history as well as his non-criminal history in reaching his conclusion. Bath has failed to show that Dr. Thorne manipulated data to reach a conclusion or that his testimony is incompetent because he made unfounded assumptions.
Bath also argues that Dr. Clayton provided the jury with nothing more than her unsupported subjective opinion to support her opinions. However, a review of the record demonstrates otherwise. Dr. Clayton clearly explained that her opinions were based on her education, training, and experience as a psychiatrist, and a background that included approximately one hundred assessments on the issue of behavioral abnormality. Dr. Clayton also explained that in forming her opinion she interviewed Bath, reviewed records containing information on his criminal history, and reviewed the results of his actuarial tests. Her testimony also reflects that she discussed positive as well as negative risk factors that relate to her opinion that Bath would likely reoffend. Reviewing the testimony as a whole, we are not persuaded that Dr. Clayton's testimony is wholly conclusory on any material issue.
Two mental health experts provided their professional opinions that Bath is a pedophile who suffers from a behavioral abnormality that makes him likely to commit a predatory act of sexual violence after his release from prison. Bath challenged neither the qualifications of these witnesses nor the reliability of their opinions in gatekeeper hearings. The respective opinions of the State's two experts are supported by data and by detailed explanations of the risk factors present in Bath's case. We hold the evidence is legally sufficient to support the jury's verdict, and we overrule issue one.
Factual Sufficiency
Bath also challenges the factual sufficiency of the evidence. In a factual sufficiency review, we weigh the evidence to determine whether a verdict that is supported by legally sufficient evidence nevertheless reflects a risk of injustice that compels granting a new trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont 2011, pet. denied).
Bath contends the State failed to prove beyond a reasonable doubt that he is unable to control his behavior. He argues the evidence is factually insufficient because the State's experts based their opinions on documents that are nearly thirty years old, relied almost exclusively on Bath's past convictions in forming their opinions, and failed to properly weigh positive factors in determining whether he would reoffend. However, the record reflects that the State's experts did consider positive factors that reduced Bath's overall risk of reoffending in their respective evaluations. The State's experts also explained that pedophilia is a chronic lifelong condition and that Bath's behavior, throughout his life, was a significant consideration. Bath's actual complaint is that the experts did not give the positive factors evidenced in his more recent history greater weight in their evaluations. Nevertheless, the record shows that the State's experts did not weigh the positive factors highly because the question presented in this case concerns a prediction that involves a person who will no longer be subject to the stricter controls present in a prison environment. Having reviewed the testimony, we are not persuaded by Bath's argument that the jury's verdict is unjust; therefore, we conclude Bath is not entitled to a new trial. We overrule issue two.
Prior Written Statements
Bath contends the trial court erred in overruling his objections to the admission of his prior written statements. Bath objected that the statements are not relevant and that they are unfairly prejudicial. See Tex. R. Evid. 402, 403. Bath stipulated to his convictions, and he argues that the facts contained in the statements became irrelevant when he admitted he had been convicted on two counts of sexual assault.
In forming his opinion, Dr. Thorne considered inconsistencies between the written statements and statements made by Bath during his interview. During trial, Bath denied that his first offense had involved penetration and claimed that he misunderstood the meaning of "intercourse" in 1982 when he gave a written statement to the police. When confronted with his 1982 written statement, Bath admitted that he told the police he had engaged in sexual intercourse with the victim. Bath also complains about the admission of a statement he gave in 2002. According to Bath's 2002 statement, he moved to Texas "to help my mom and sister and also to get away from my problem of touching and rubbing on [D]." At trial, Bath denied that he moved to Texas to avoid situations that led to fondling [D]. When confronted with the statement he gave in 2002, Bath admitted that his decision to move to Texas was partly motivated by his desire to get away from his "problem of touching and rubbing on [D]."
On appeal, Bath argues that neither statement was relevant. See Tex. R. Evid. 402. He does not contend that the State's method of impeachment was improper. See Tex. R. Evid. 613. In assessing the evidence, the jury was required to determine Bath's credibility and to evaluate Dr. Thorne's testimony that Bath had been inconsistent regarding these matters. The statements had a tendency to make a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Tex. R. Evid. 401. Thus, the statements were relevant apart from their tendency to prove the stipulated convictions. See Tex. R. Evid. 402.
Bath also complains that the admission of the statements to show that he had not been entirely consistent regarding his past offenses was unfairly prejudicial. But, the admission of the statements had probative value. According to Dr. Clayton, Bath cannot begin to attempt to control his behavior until he admits that his behavior is sexually deviant and violent. Dr. Thorne stated that acceptance of responsibility is not a risk factor in and of itself but that it affects the party's ability to successfully complete sex offender treatment. The prejudice that Bath has identified is not unfair prejudice because the prejudice arises from its probative value and not from some unrelated matter. See Robbins v. State, 27 S.W.3d 245, 251 (Tex. Crim. App. 2000) (applying Rule 403 in a criminal case).
Citing Rule 403, Bath argues that the statements were unfairly prejudicial because, in closing argument, the State argued that the statements showed that Bath "can't even take responsibility for what he took responsibility for then." See Tex. R. Evid. 403. Bath claims the statements were unnecessarily cumulative of the admissions that were read to the jury. However, during the commitment process Bath had denied the accuracy of the facts he had admitted in his earlier statements.
The probative value of the statements includes their tendency to show that at one time Bath had admitted to matters that he would no longer admit during the proceedings that led to his commitment. We conclude the admission of Bath's prior inconsistent statements were neither unduly prejudicial nor were they cumulative of the matters that he admitted in his requests for admissions. We overrule issue three.
Limiting Instruction
Bath contends the trial court erred by including an instruction addressing the records that were reviewed by expert witnesses who testified during the trial. The trial court's charge includes the following instruction:
Furthermore, certain hearsay information contained in records reviewed by the experts was admitted into evidence through expert testimony. Such evidence was admitted only for the purpose of showing the basis of the experts' opinion.Bath complains that the trial court failed to include the instruction that he submitted regarding an expert witness's use of hearsay. His request asked that the trial court submit the following instruction:
Furthermore, certain hearsay information contained in records reviewed by the experts, Dr. Clayton and Dr. Thorne, was admitted into evidence through expert testimony. That evidence was admitted only for the purpose of showing the basis of the experts' opinion, and may not be considered by you for any other purpose. Thus, you may not consider those statements and records to be true.
We review the trial court's decisions to submit or refuse particular instructions under an abuse of discretion standard. In re Commitment of Miller, 262 S.W.3d 877, 891 (Tex. App.—Beaumont 2008, pet. denied). A trial court has considerable discretion in determining whether jury instructions are necessary and proper. Id. To obtain reversal of a judgment based on jury charge error, an appellant must show harm, i.e., that the claimed error probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting his case to the court of appeals. See Tex. R. App. P. 44.1(a).
We addressed a similar challenge to the one Bath makes in his case in another appeal. See In re Commitment of Moore, No. 09-08-00531-CV, 2009 WL 5448789, at **3-5 (Tex. App.—Beaumont Jan. 21, 2010, no pet.) (mem. op.). In deciding Moore, we noted Rule 705(d) of the Texas Rules of Evidence creates a balancing test for courts to use in deciding whether underlying facts or data that relate to an expert's opinion are to be admitted into evidence. Id. at *4. In Moore, we concluded the trial court did not abuse its discretion in submitting an instruction like the one that is at issue here. Id. at *5.
Rule 705, in pertinent part, states:
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Moreover, not all of the underlying records the experts considered were inadmissible. For example, part of the records that are at issue contain Bath's own statements. When relevant, prior statements of a party are not inadmissible as hearsay. See Tex. R. Evid. 801(e)(2) (admission by party-opponent are not hearsay). Thus, Bath's proffered instruction was not substantially correct because it requires the jury to disregard relevant and admissible evidence in the underlying records. The trial court could reject Bath's tendered instruction because it was not substantially correct; consequently, we conclude the trial court did not abuse its discretion in refusing Bath's requested instruction. See Tex. R. Civ. P. 278 (failure to submit instruction not error unless substantially correct instruction is tendered to the trial court); Tex. R. Evid. 705(d) (providing trial courts with authority to give juries limiting instructions). We overrule issue four.
Submission of Jury Questions
Bath challenges the trial court's use of a broad-form charge. In a single question, the charge asked: "Do you find beyond a reasonable doubt that DAVID BATH suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence?" During the charge conference, Bath requested that the trial court divide the main question presented to the jury into two separate questions: (1) "Do you find beyond a reasonable doubt that David Bath suffers from a behavioral abnormality?"; and (2) If a behavioral abnormality does exist, do you find beyond a reasonable doubt that the behavioral abnormality makes David Bath likely to engage in a predatory act of sexual violence?"
We recently approved the broad form submission of the controlling issue in a single question. See In re Commitment of Campbell, No. 09-11-00407-CV, 2012 Tex. App. LEXIS 5125, at **21-22 (Tex. App.—Beaumont Jun. 28, 2012, pet. filed) (mem. op.). According to Bath, the charge the trial court submitted prevented the jury from giving adequate consideration to his defensive evidence and arguments.
We disagree with the premise of Bath's argument. The charge the trial court submitted required the jury to consider each of the controlling elements relevant to a sexually violent predator commitment proceeding; the charge also contains instructions the jury was required to follow regarding the statutory definition of the term "behavioral abnormality." See id.; Tex. Health & Safety Code Ann. § 841.002(2) (West Supp. 2012), § 841.062(a) (West 2010). Although Bath argues that the charge prevented the jury from giving adequate consideration to his defensive evidence and arguments, the charge required the jury to find beyond a reasonable doubt that Bath has a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. The charge did not permit an affirmative answer upon proof of either behavioral abnormality alone or upon proof that Bath was likely to engage in a predatory act of sexual violence without proof of a behavioral abnormality. We hold the trial court did not abuse its discretion by refusing to submit the two questions Bath requested. We overrule issue five and affirm the trial court's judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.